TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 833
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....inal landlord Sudesh Kumar Singhal in the year 1998 and, as such, became the tenant-Rashid Ahmed's landlord from 1998. The Respondents - landlord moved an application before the Rent Controller and Eviction Officer, Mussoorie on 10.6.1999, contending therein, that Rashid Ahmed had sub-let the property to some other persons who were not the family members of the tenant. As such, they prayed for declaration of vacancy under the provisions of Section 16(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "U.P. Act, 1972" or "the Act"). On the application of the landlord, a Rent Control Inspector was appointed to inspect the suit premises. The Rent Control Inspector visited the suit premises and submitted his report on 16.08.1999. In the report, it was stated, that Rashid Ahmed, who was the tenant, was not present in the premises at the time of the inspection and he was informed by the occupants that he had gone to his village Bhatpura in Saharanpur District. The report further stated, that Rashid and Akbar were sons of Hasunuddin and, as such, real brothers. The report stated that, there were several persons residing in ....
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....No. 122 of 2007 before the District Judge, Dehradun as provided Under Section 18 of the U.P. Act, 1972. The learned District Judge, Dehradun, by a well-reasoned order dated 5.6.2008, allowed the revision thereby, setting aside the order of vacancy dated 4.6.2003 and the final order dated 31.5.2007. Being aggrieved thereby, the Respondents No. 1 and 2 - landlord filed a writ petition before the High Court of Uttarakhand at Nainital being Writ Petition No. 1074 of 2008 (M/S). As stated earlier, the said writ petition is allowed by the impugned order dated 26.10.2017. Being aggrieved, the present appeal by special leave. 4. We have heard Shri Ashok Kumar Sharma, learned Senior Counsel appearing on behalf of the Appellant and Shri Arvind Kumar Gupta, learned Counsel appearing on behalf of the Respondents - landlord. 5. The main ground on which the writ petition has been allowed by the High Court is that, the learned District Judge had committed illegality in entertaining the joint revision filed against the vacancy order as well as the final order. The High Court in the impugned order has observed, that the judgment and order dated 23.8.2006, passed by the said High Court dismissin....
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....ubt, in the meantime, U.P. Act, 1972 had undergone an amendment and an appeal against the final order of allotment had been replaced by a revision under more restricted conditions. In Ganpat Roy (supra), it was observed, that the observations in Tirlok Singh (supra), holding, that it was unnecessary for the District Magistrate to hear the parties before notifying the vacancy, did not appear to be correct. It was also observed, that it also did not appear to be correct to hold, that an order notifying the vacancy did no injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to. It was held, that the correctness of the decision in Tirlok Singh (supra) was open to doubt. Their Lordships in Ganpat Roy (supra) therefore held, that the scheme of the Act would show that a tenant of a premises, in whose case it was found that there was a deemed vacancy, had no efficacious or adequate remedy under the Act to challenge that finding. It was, therefore, held, that a petition Under Article 226 or 227 of the Constitution filed by such a tenant in order to challenge that finding could not, therefore, be said to be premature. 9. In Ac....
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....7 Moo IA 283] (Moo IA at p. 302) We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a Rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. 12. In Sheonoth v. Ramnath [(1865) 10 MIA 413] the Privy Council reiterated that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order. 13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code. The two exc....
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....ately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy case [(1985) 2 SCC 307] and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658] that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he ....
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.... to approach the High Court. It was further observed, that it would really be a case of election of remedies. 11. In the present case, the Appellant and deceased Shabbir Ahmed, rightly, on the basis of the judgment of this Court in the case of Achal Misra (supra), had filed a writ petition being Writ Petition No. 7 (MS) of 2003, challenging the order of vacancy dated 4.6.2003. The learned single judge of the High Court vide order dated 23.8.2006 after specifically observing and reproducing paragraph 14 of the judgment of this Court in the case of Achal Misra (supra) observed thus: In view of the aforesaid, liberty is given to the Petitioner to challenge the order dated 4th June, 2003 after the final order is passed Under Section 16 of the U.P. Act No. 13 of 1972. 12. In the light of this, we fail to appreciate, as to how the learned judge of the High Court in the impugned order, could have made observations in paragraph 11 thereof. The learned Judge goes to observe, that after dismissal of the writ petition there was no occasion for the said High Court to grant liberty to the Respondents to avail remedy of revision challenging the order of vacancy dated 4.6.2003. It appears, th....
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....ourt in Achal Misra (supra), we find, that the learned single judge of the High Court has committed a gross error. 16. We are, therefore, of the considered view, that the High Court has patently erred in holding, that the revision entertained by the District Judge against the vacancy order dated 4.6.2003 along with the final order of release dated 31.5.2007 was not tenable. The learned judge has totally erred in observing, that the order of the High Court dated 23.8.2006 dismissing the writ petition had attained finality since it was not challenged before this Court. The learned judge ought to have taken into consideration, that though the vacancy order was challenged in a writ petition, the High Court vide order dated 23.8.2006, while dismissing the writ petition had reserved the right of the Petitioners (Appellant and proforma Respondent No. 3 herein) before it to challenge the vacancy order along with the final order passed Under Section 16. The observation of the learned judge, that the High Court in its earlier order dated 23.8.2006, could not have granted liberty to challenge the vacancy order along with the final order is also contrary to the settled principles of judicial ....
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....ative intent was clear that the power conferred was revisional power. This Court observed thus: 11. Learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable..... It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable. 21. Again in the case of Ram Narain Arora v. Asha Rani and Ors. (1999) 1 SCC 141, this Court had an occasion to consider the aforesaid powers under the Delhi Rent Control Act, 1958. This Court observed thus: 12. It is no doubt true th....
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....ion in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exist in this case to justify interference by the High Court. 23. This Court thus held, that the interference in revisional powers would be permitted only if the High Court finds that the order impugned is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. 24. Lastly, the Constitution Bench of this Court in the case of Hindustan Petroleum Corporation Limited v. Dilbahar Singh (2014) 9 SCC 78 had an occasion to consider the scope of revisional powers as contained in the Kerala Buildings (Lease and Rent Control) Act, 1965, T.N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The Court observed thus: 43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to i....
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....if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, in such a case, it is open to correction because it is not treated as a finding according to law. 25. No doubt, that the observations in the aforesaid cases deal with the revisional powers to be exercised by the High Court under the special statute. This Court has observed, that in examining the legality and the propriety of the order under challenge in revision, what is required to be seen by the High Court, is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It has been held, that if such a finding is allowed to stand, it would be gross miscarriage of justice and is open to correction because it is not to be treated as a finding according to law. 26. The revisional powers conferred upon the Distric....
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....t in the premises. It was also told to him that Rashid Ahmed has gone to his village. It is also noted in the inspection note that in the given premises, Sri Rashid himself, Sri Inam, s/o Rashid along with his wife and children, Sri Shabir Ahmed along with his wife Smt. Shafikan, daughter and Sri Ayub, Naseema and Nasim were residing in the property. It is worthy to note that Sri Inam is the son of Rashid who is said to be the tenant even according to landlord. The persons named in the inspection report are either the family members of tenant Rashid or the family members of his brother Akbar. Admittedly except the family member of Rashid or Akbar no other person was found residing in the property in question. In this perspective, the factum of deemed vacancy is to be seen. The Hon'ble Supreme Court in so many words has held that the words "allowed to be occupied" indicate that the possession of such building has been given to a person who is not a family member of the tenant. It shall not be attracted when any person who is not a member of family of the tenant reside in such building either along with landlord or the original tenant meaning thereby if any person other than the ....
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....ing the jurisdiction either illegally or with material irregularity. In that view of the matter, the learned District Judge was wholly justified in interfering with the order impugned before him and reversing the same. 30. Though the District Judge as well as the High Court has also gone on the issue of Section 14, we do not propose to go into the said aspect of the matter, inasmuch as, we find, that the present appeal deserves to be allowed on the aforesaid grounds. 31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned District Judge while exercising the jurisdiction of the High Court Under Article 227 of the Constitution of India. 32. It is a well settled principle of law, that in the guise of exercising jurisdiction Under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers Under Article 227 are wide, they must be exercised ....